With cannabis now legal for private use in South Africa, employers must navigate privacy rights, workplace safety and evolving labour law. Here’s what recent court cases mean for your business and its Cannabis Workplace Policy.
Whether you are a business owner or you are looking after the HR function in a business, the subject of Cannabis use amongst your staff is likely to cross your desk at some point. According to research released by the United Nations in 2020, 3% of the South African population had indicated they used Cannabis – approximately 2 million people.
If we consider that, as far back as 2004, the Medical Research Council pegged the number at around 2.2 million people, prior to softer regulations, the number is likely much higher – but what does this mean for employers?
The legal landscape in South Africa prior to 2018 was that the use and possession of Cannabis (marijuana) was illegal and criminalised the private use and possession of the substance.
The Prince Case:
The legal landscape for Cannabis changed following the Constitutional Court’s landmark judgment held in Minister of Justice and Constitutional Development and Others v Prince (“the Prince case”).
The case challenged the criminalisation of the use of Cannabis on the basis of an infringement of the constitutional right to privacy entrenched in section 14 of the Constitution and pronounced that legislation criminalising the private use of Cannabis is inconsistent with the Constitution.
This judgment of this case decriminalised the private use, possession, and cultivation of Cannabis in favour of the constitutional right to privacy by declaring the provisions of the Drugs Act inconsistent with the right to privacy to the extent that the private use, cultivation and possession of Cannabis is an offence.
On 28 May 2024, the Cannabis for Private Purposes Act[1] (“the Cannabis Act”) was signed into law. The Cannabis Act allows for the use of Cannabis for private purposes by an adult person, where use is restricted to recreational purposes and is permitted only in private settings for adults.
The question then arises, what happens when “Private settings” extend into the workplace?
Nkosi Case:
In the matter of Nkosi and another / Merchants SA (Pty) Ltd t/a Dimension Data Company[8], the CCMA addressed the dismissals of two call centre operators who tested positive for Cannabis.
These employees performed non-safety-sensitive roles and showed no signs of intoxication or impairment while on duty. The Commissioner found that dismissal based solely on the presence of Cannabis traces in their blood was substantively unfair, emphasising the distinction between testing positive and being under the influence of a substance.
The CCMA acknowledged the lingering nature of Cannabis in the bloodstream and highlighted the importance of assessing actual impairment or risk rather than mere detection. Both employees were reinstated without back pay, with the Commissioner noting that while their dismissals were harsh, the applicants bore some responsibility for disregarding the employer’s workplace policies.
Taken together, these authorities establish three clear legal principles for employers:
(a) The constitutional right to privacy protects lawful private use of Cannabis;
(b) Employers retain a duty to ensure workplace safety and may lawfully restrict impairment at work; and
(c) Positive drug tests alone, particularly those detecting historical use, are not always sufficient proof of impairment and may be insufficient in non-safety-sensitive contexts.
Implications for Employers:
Employers retain the right to enforce policies prohibiting the use of drugs, including Cannabis use, to ensure workplace safety and productivity. However, the following considerations are critical:
Policy clarity: Policies must explicitly address Cannabis use, distinguishing between impairment and mere presence of Tetrahydrocannabinol (“THC”) in the bloodstream. Ambiguous policies can lead to legal challenges.
Context sensitivity: High-risk industries may justify stricter policies, while office-based environments require nuanced approaches that balance safety and privacy.
Proof of impairment:
Employers must prove impairment or risk rather than relying solely on positive drug tests, given the lingering presence of THC in the body. Employers should prioritise impairment-focused assessments (behavioural observation, validated on-site impairment tests) and use biological testing only where justified by role risk and supported by policy.
Disciplinary fairness: Disciplinary actions must follow due process, taking into account mitigating factors such as an employee’s awareness of policies, prior records, and the nature of the misconduct. Employers should also ensure consistent application of policies.
Zero‑tolerance limits: The Nkosi case illustrates that zero-tolerance policies must align with the nature of the work and the operational context. Employers relying on such policies in non-safety-sensitive roles must demonstrate impairment or specific risks linked to the employee’s actions, rather than relying on positive drug test results alone. Clear distinctions between ‘presence’ and ‘influence’ must be drawn to avoid unfair dismissals.
Mthembu And Others v Durban Wood Chips Case:
In the case of Mthembu and Others v NCT Durban Wood Chips[1], the Commission for Conciliation, Mediation and Arbitration (“CCMA”) upheld the dismissal of several employees who tested positive for Cannabis. The employees worked in a hazardous work environment with a zero-tolerance approach to working under the influence of alcohol or drugs.
The Commissioner noted that the Constitutional Court had just declared private use of Cannabis legal. However, employers are still entitled to discipline employees who use Cannabis or are under its influence during working hours. The respondent’s operations indicated that such a prohibition was reasonable, and the applicants knew that they were not allowed to report for work while under the influence.
This decision underscores that context matters. In safety-sensitive roles, restrictions on impairment at work are more likely to be upheld.
The Labour Appeal Court in National Union of Metalworkers of South Africa obo Nhlabathi and Another v PFG Building Glass confirmed that an employer’s zero-tolerance policy on Cannabis was valid when applied consistently and reasonably in a hazardous workplace.
Enever v Barloworld Equipment:
In Enever v Barloworld Equipment, the Labour Appeal Court addressed an appeal by the appellant, a category analyst employed by the respondent. The appellant had signed a zero-tolerance to drugs and alcohol policy and agreed to random voluntary drug testing.
On 29 January, the appellant was required to undergo drug testing and failed. The drug test result came back positive for the use of Cannabis. The appellant was then dismissed for wilful breach of the zero-tolerance policy. The appellant took the matter on appeal.
The Labour Appeal Court held that an employer cannot disregard an employee’s privacy when implementing or acting in terms of its policies. The respondent’s policy is that any employee who works for it cannot test positive for drugs, including Cannabis, at all, which the court held that employees have the right to do in their private time. The court held that “Policies against drug and alcohol use are standard and are aimed at complying with section 8(1) of the Occupational Health and Safety Act. It is on this basis that the Respondent justifies its violation of the Appellant’s right to limit what she does in her own private time outside the workplace.”
The court noted that policies must account for the nature of the employee’s role and the operational environment.
The judgment further held that:
“Within this context of the right to privacy, I can think of no more irrelevant fact to the employer in this case than the Appellant enjoying a “joint” during her evenings in the privacy of her home. The use of a blood test alone without proof of impairment on the work premises is a violation of the Appellant’s dignity and privacy. This policy prevents her from engaging in conduct that is of no effect to her employer, yet her employer is able to force her to choose between her job and the exercise of her right to consume Cannabis. The Respondent has not shown that she was “stoned” or intoxicated at work, as a result, that her work was adversely affected or that she created an unsafe working environment for herself or fellow employees.”
Practical next steps for employers regarding the cannabis workplace policy:
- Review and update workplace substance policies to distinguish presence from impairment and to align with the Cannabis Act, OHSA and labour law.
- Conduct role-based risk assessments and document the rationale for any zero-tolerance rules.
- Implement impairment-focused testing and manager training on behavioural indicators.
- Ensure POPIA compliance for any health or testing data.
- Seek legal advice before disciplining or dismissing employees based solely on positive tests.
- Employers should consult legal counsel to tailor policies to their operational context and to ensure compliance with evolving statutory and case law.
The legalisation of Cannabis for private use presents both opportunities and challenges in the workplace. Employers must strike a balance between respecting employees’ rights and maintaining safety and productivity. By implementing transparent, fair, and context-sensitive policies, employers can navigate this complex issue effectively while minimising potential disputes.
